121 N.W. 78 | N.D. | 1909
Plaintiff had judgment in the court below pursuant to a verdict directed by the court, and this appeal is from such judgment and from an order denying defendant’s motion for judgment notwithstanding the verdict or for a new trial.
The facts are not seriously in dispute, -and are substantially as follows: Plaintiff, being the owner of certain household goods, a list of which appears in the complaint, had the same taken from his home in Minneapolis by Boyd Storage & Transfer Company, and by them packed and crated 'for shipment and shipped to him at Tolna, N. D. He paid them a hump sum of $23 for packing, hauling, shipping, and freight charges. The storage company’s drayman delivered the goods to the Minneapolis freighthouse of the defendant for shipment to Hanson at Tolna. The goods were weighed, weighing 1,540 pounds as packed. Anderson, the teamster .for the Boyd Company, caused the shipment to be made in the name of Boyd Transfer & Storage Company, as consignor, to T. M. Hanson, as consignee. At that time the regular freight rate on goods of this class from Minneapolis to Tolna was 1J-2 times first class, of $1.41 per 100 pounds. Defendant also had a special western rate, called the “emigrants’ movable rate,” from Minneapolis and other specified points to North Dakota, on household goods of intending settlers, when the shipment is made at the
Appellant’s counsel have assigned numerous alleged errors of law which they ask this -court to review, but it will not be necessary to notice them in detail. As we view the questions involved, they may be classified into three propositions, as follows: (1) Is plaintiff legally bound by the action -of the Boyd Transfer & Storage Company through its employe, Anderson, in entering into the special contract limiting the common carrier’s liability? (2) Conceding Anderson’s implied authority to make the same, is said special contract valid? (3) Under the facts has defendant forfeited its right to -rely upon and enforce the provisions of such special contract ?
If the second proposition is decided in the negative, such decision will obviate the necessity of passing upon the other propositions. Hen-ce, we will proceed to consider the validity of this special contract. The same was entered into in the state of Minnesota and, under the weight of authority, is governed by the law of that state. Liverpool, etc., Steam Co. v. Insurance Co., 129 U. S. 397, 9 Sup. Ct. 4-69, 32 L. Ed. 788, and numerous other -cases cited in note on pages 125, 126, 88 Am. St. Rep. Notwithstanding this fact, however, we understand the rule to be that the same will not be given effect in the courts of this state if it is against the established public policy here. 11 Cur. Law, 529, citing Carter v. Southern R. Co., 3 Ga. App. 34, 59 S. E. 209; Atlanta, etc., R. Co. v. Brooms, 3 Ga. App. 641, 60 S. E. 355; International, etc., R. Co. v. Van Devanter, 107 S. W. 560. It does not appear that a statute exists in Minnesota relating to the right of a common carrier to limit its common-law liability in case of loss or damage to property in its cus
In many jurisdictions it is necessary to look to the decisions of the courts to ascertain its public policy, as they have no legislative declaration with reference thereto. Not so here, as the Legislature has seen fit to settle the question by express statute. See chapter 59 of the Civil Code, being sections 5672 to 5701, inclusive, Rev. Codes 1905. Section 5677 provides: “The obligation of a common carrier cannot be limited by general notice on his part but may be limited by special contract.” The next section provides: “A common carrier cannot be exonerated by any agreement made in anticipation thereof from liability for the gross negligence, fraud or willful wrong of himself or his servant.” This section was amended in 1907 by eliminating the word “gross.” See chapter 57, p. 83, Laws 1907. Such amendment is not material, however, as plaintiff’s cause of action arose prior to its enactment. And the following section provides: “A passenger, consignor or consignee by accepting his ticket, bill of lading or written contract for carriage with knowledge of its terms, assents to the rate of hire, the time, place and manner of delivery therein stated. But his assent to any other modification of the carrier’s rights or obligations contained in such instrument can only be manifested by his signature to the same.” These sections were taken from, the original Field Civil Code and were intended to provide a settled rule of construction upon this subject, the decisions respecting which were theretofore apparently ,in hopeless conflict. As said by Chief Justice Tripp in Hartwell v. Northern P. E. Co., 5 Dak. 473, 41 N. W. 735, 3 L. R. A. 342; “The decisions of the courts have varied, and are now conflicting, as to whether the common-law liability of the carrier may be limited; (1) By notice brought home to the party; (2) by special acceptance of goods for carriage; (3) by express contract between the parties. There is much diversity of opinion of the courts how far such liability may be restricted or limited on grounds of public policy. Our statute has aimed to settle these conflicting decisions.” After quoting the foregoing sections, the opinion continues: Section 1263 (section 5679, Rev. Codes 1905), supra, supplements and makes clear section 1261 (section 5677, Rev. Codes 1905). Section 1261 is founded upon the common-law doctrine as announced by Justices Bronson and Cowan in Hollister v. Nowlen,
We have thus quoted at length from the foregoing opinion as the same clearly sets forth our views as to the proper construction of the provisions of our Code, supra, and nothing need be added by us. The state of California has similar statutory provisions, and the Supreme Court of that state, in the very recent decision of Donlon Bros. v. Southern Pacific Co., 151 Cal. 763, 91 Pac. 603, 11 L. R. A. (N. S.) 811, gave expression to the same views. We quote: “At common law a common carrier might make any other contract relative to the carriage of property intrusted to it, save one exempting it from liability for any kind of- negligence. This rule was
The -contract in question, therefore, in so far as it does not attempt to limit defendant’s liability for loss or damage occasioned by gross negligence, fraud, or willful wrong of itself or its servants, is not contrary to the public policy of this state as expressed in the provisions of the Code above -cited; but to the extent, if any, that it attempts otherwise to limit such liability, the same will not be enforced by the courts of this state. The so-called “special contract” is as follows: “Property Release. Consignee and -destination, Theo. M. Hianson, Tolna, N. D. Description of Articles. 1
It is entirely clear that the first paragraph of said contract, which attempts to exonerate the company from all liability for loss or damage of every kind, except such as may occur from negligence of the company by collision of trains or by cars being thrown from the track, is void both under the common-law rule and the statute of this state, and this is also true with reference to the third paragraph. It remains to consider the validity of that portion of the contract whereby a declared valuation of $5 per hundredweight of the goods in question is set forth, with the agreement that in case of loss or damage to said property a recovery therefor shall not exceed such declared valuation.
Respecting the validity of such agreed valuation stipulations, there is much diversity of opinion among the courts of this country; but by the weight of authority such stipulations are upheld, provided the same are reasonable in the eyes of the law and are fairly and honestly made as a basis for the carrier’s charges and responsibility, even where the loss is caused by the negligence of the common-carrier ; the theory of such decisions being that such a stipulation or agreement is a just and reasonable mode of securing a due proportion between the amount for which the 'carrier may be responsible and the freight he receives, and of protecting himself against ex
The courts are not agreed regarding the test to be applied in determining the validity of such contracts or stipulations; some holding a stipulation void which merely fixes a maximum value on the property limiting recovery in case of loss to the sum not exceeding such amount, upon the ground that a stipulation of this kind is a mere attempt to limit the carrier’s liability, and hence is solely in the interest of such carrier. Other courts hold that there is no distinction on principle between such a stipulation and one by which the parties expressly agree to a certain fixed valuation. Among those holding to the former rule are Conover v. Pac. Exp. Co., 40 Mo. App. 31; Kellerman v. Kans. City, etc., Co., 68 Mo. App. 255; St. Louis, etc., R. Co. v. Sowell 90 Tenn. 17, 15 S. W. 837; Eells v. St. Louis Ry. Co., (C. C.) 52 Fed. 903. Among those holding to the latter rule are Alair v. N. P. R. Co., 53 Minn, 160, 54 N. W. 1072, 19 L. R. A. 764, 39 Am. St. Rep. 588; Ullman v. Chicago etc., Ry. Co., 112 Wis. 15, 88 N. W. 41, 88 Am. St. Rep. 949.
While there is some contrariety of opinion also on the question of the validity of such stipulations depending upon whether the value is fixed by the shipper himself or inserted by the carrier under the prevailing rule no such distinction is drawn. The true test seems to be whether the stipulation was inserted and agreed to in the interest of the carrier for the mere purpose of limiting his liability in case of loss or damage, or whether it was inserted for the purpose
The doctrine thus announced, however, seems to be opposed to the weight of authority, and we think the sounder rule is that announced in Alair v. N. P. R. Co., 53 Minn, 160, 54 N. W. 107.2, 19 L. R. A. 764, 39 Am. St. Rep. 588; Donlon Bros. v. So. Pac. Co., 151 Cal. 763, 91 Pac. 603, 11 L. R. A. (N. S.) 811, and other cases above cited, holding in effect that a mere difference between
Another line of very respectable authorities adhere to the rule that the carrier will not be permitted, by any contract with the shipper to limit his liability for loss caused by his negligence to anything less in amount than the actual damage suffered by the shipper. Among the courts so holding are Illinois, Kentucky, Mississippi, Nebraska, Ohio, Pennsylvania, Tennessee, and Texas. The following are a few of the cases: Chicago, etc., Ry. Co. v. Chapman, 133 Ill. 96, 24 N. E. 417, 8 L. R. A. 508, 23 Am. St. Rep. 587. Chicago, etc., Ry. Co. v. Calumet Stock Farm, 194 Ill. 9, 61 N. E. 1095, 88 Am. St. Rep. 68 (containing a very valuable and exhaustive note covering every phase of the subject of the limitation of a carrier’s liability); Chicago, etc., Ry. Co. v. Witty, 32 Neb. 275, 49 N. W. 183, 29 Am. St. Rep. 436; U. S. Exp. Co. v. Backman, 28 Ohio St. 144; Adams Exp. Co. v. Holmes (Pa.) 9 Atl. 166; Houston, etc., Ry. Co. v. Davis, 11 Tex. Civ. App. 24, 31 S. W. 308. For other cases so holding, see above note in 88 Am. St. Rep., at page 112.
We are not required in the case at bar, to express our views as to which rule announced by the foregoing two lines of authorities is the sounder, for we are agreed that, applying the test adopted by the courts holding to the first rule above stated, the stipulation in question is not “just and reasonable in the eye of the law,” and hence is not only contrary, to the public policy of this state, but is also contrary to the well-established rule of the common law, and
Our conclusion is that such special -contract, under the facts in the case at bar, is void in its entirety, both- at common law and under the established rule of public policy of this state, and hence the same cannot avail defendant as a defense to plaintiff’s cause of
The judgment and order appealed from are correct, and are, accordingly, affirmed.